Danville-Boyle County Planning and Zoning Com'n v. Prall

• Decision Date: 19 November 1992
• Docket Number: DANVILLE-BOYLE,No. 91-SC-782-DG,91-SC-782-DG
• Parties: COUNTY PLANNING AND ZONING COMMISSION, Movant, v. Thomas PRALL and Edna Prall, County of Boyle, Respondents.
• Court: United States State Supreme Court — District of Kentucky

Page 205

840 S.W.2d 205

DANVILLE-BOYLE COUNTY PLANNING AND ZONING COMMISSION, Movant, v. Thomas PRALL and Edna Prall, County of Boyle, Respondents.

No. 91-SC-782-DG.

Supreme Court of Kentucky.

Nov. 19, 1992.

Elizabeth Nickels, Silliman, Dishman & Nickels, Danville, for movant.

Helen C. Helton, Helton & Helton, Danville, for respondents, Pralls.

George M. McClure, Danville, for respondent, County of Boyle.

REYNOLDS, Justice.

This zoning case requires a definitive expression of this Court's views concerning basic requirements to be observed in the procedure of amending a Planned Unit Development.

Respondents, Thomas and Edna Prall, sought to have their agriculturally zoned property (11.03 acres) changed into the following classifications. The respondents requested that 9.06 acres be rezoned R-1 (low density residential) and the remaining 1.97 acres be rezoned C-2 (neighborhood commercial). The tracts, while separated by a creek, adjoined one another with the latter tract containing highway frontage. At a public hearing upon both zoning requests, the residential zoning was approved and is not the subject of this litigation. The C-2 zoning was coupled with and dependent upon a Planned Unit Development (PUD) procedure.

At the early 1987 zone change hearing, respondent, Thomas Prall, represented to the Commission and interested landowners that the residential development would be as restrictive or more stringent than those restrictions governing the adjacent residential subdivision. It was further represented that the neighborhood commercial (C-2) tract would be controlled. The respondents' development plan displayed one structure, a 6,000 square foot building, with pavement, adjoining gasoline pumps and parking areas. The structure was to be utilized for a convenience store and the rest of the 1.97 acre lot was to be a green space buffer zone with picnic tables, sidewalks and a bridge across the creek at the rear of the property. Respondent offered assurances of his intentions as being portrayed by the development plan.

The C-2 zone change was approved and conditioned upon the Planned Unit Development (PUD). The Boyle Fiscal Court subsequently approved the rezoning with PUD.

The April 1, 1987, Planning and Zoning hearing resulted in the approval of the respondents' plat which was demonstrative of the Planned Unit Development.

While the idea of Planned Unit Development is a relatively new concept in zoning, usually with respect to residential development, it is useable in conjunction with a commercial concept. Control of density in the area to be developed is an essential part of the plan and the preservation of green/open space is another ingredient. Conformity to good landscaping as the respondents exhibited in the original development plan is also an objective. See 43 ALR3d p. 888 (1972).

In June 1988, respondents were permitted an amendment to the development plan only to the extent that the 6,000 square foot building could be internally divided into four distinct sections and with the use of one section being offered for a dry cleaning service.

Two years after the initial zoning and PUD (April 1989) respondents applied for a substantial additional amendment to their original development plan and sought permission to erect a second building (containing 3,600 feet) designed for professional and governmental offices. At the public hearings upon this latter application, respondent referred to the green space buffer area as vacant property. (May 17, June 7 and July 5, 1989). The request for this amendment was subsequently denied by the Commission, and upon appeal, Boyle Circuit Court affirmed the Commission's decision. The Kentucky Court of Appeals' opinion directed that the order of Boyle Circuit Court be vacated and the matter remanded with directions to order a "public hearing" upon the Pralls' application.

At issue is the type of hearing to which respondents were entitled upon the amendment application to the Planned Unit Development.

The zoning regulation speaks to Planned Unit Developments in Boyle County. It provides for a recognition of special characteristics of Planned Unit Developments. It evolves from a variety of devices coined to meet specific land use control problems. It has roots in open space zoning, special permit procedures, and subdivision techniques. Anderson, American Law of Zoning, Vol. 2, Sec. 11.09 (1968).

The Pralls' tract of 1.97 acres was, in the past, utilized as a part of a drive-in theater type business and which area was improperly classified as an Agriculture-1 district. The application for zoning change to a Commercial-2 zone came before the Planning and Zoning Commission by public/open hearing in early 1987. At the initial hearing, the Pralls were represented by an attorney. Neighborhood residents (some in protest) were in attendance. The Pralls had agreed to a planned development project as a condition of the zone change which was subsequently approved by the Planning and Zoning Commission March 18, 1987.

No issue exists as to a lack of due process at either of the public hearings wherein the basic zone change was made and subsequently approved by the legislative body of Boyle County. The condition of attaching the Planned Unit Development to the zone change was initiated and agreed upon by the Pralls. Once legislatively adopted, the effect of a Planned United Development in a C-2 zone creates a separate zone designation for the property which is subject fully to the development plan. When established, the PUD district, in effect, constitutes a separate zoning district. Bellemeade Co. v. Priddle, Ky., 503 S.W.2d 734 (1974); see also Cetrulo v. City of Park Hills, Ky., 524 S.W.2d 628 (1975). A trial type hearing appears to have been fully complied with as pertains to the initial zone change.

Respondents maintain that their proposed amendment to the Planned Unit Development necessitated due process and that the Commission's failure to make specific findings of fact, coupled with the practice of permitting staff recommendations, denied them the right to a trial type hearing.

As it has been made to appear, and we agree, the Pralls' latter amendment constituted such a departure from the development plan which had been initially approved and followed for a period of two years, that either the zoning enforcement officer or the Commission could have denied the request to build a second business building without the necessity of affording a hearing. However, a hearing was granted and the Court of Appeals, in a 2--1 opinion, vacated and remanded the decision of Boyle Circuit Court. It found that the Commission's proceedings fell short of constitutional due...